Thursday, October 18, 2018

Shifting Reasons for Discharge Can Result in Employer Liability

Often employers base discharge decisions on several reasons related to an employee’s conduct, performance or a combination of the two. It may be that an employee who had marginal performance developed an excessive absence problem which forced the employer to decide whether that employee was still a valued contributor to the organization. While it is okay to have more than one reason for discharging an employee, it is not okay to reference only the “last straw” or most recent issue which ultimately led to the discharge decision.

This was brought home again in the recent 7th Circuit case of Donley v. Stryker Sales Corporation. The plaintiff in that case sued her former employer for retaliatory discharge when she was terminated shortly after she filed an internal sexual harassment complaint on behalf of another employee. The employer filed a position statement in response to plaintiff’s EEOC charge stating a reason for her discharge. When plaintiff filed a suit in federal court, the employer answered that complaint, stating a different reason for her discharge.

In reversing the district court’s grant of summary judgment to the defendant, the court found that the employer’s “shifting reasons” for discharge, in addition to the timing of the discharge being in such close proximity to the plaintiff’s sexual harassment report, created a question of whether the employer’s reasons for discharge were merely a pretext.

Employers need to carefully draft discharge documents and responses to charges of unlawful termination. While it is common to have several reasons for terminating an employee, it is important to reference all of the reasons and not just the last event or most prominent cause.